COMMENTARY. RELIGION IN PUBLIC SCHOOLS: AN AMERICAN AND SOUTH AFRICAN PERSPECTIVE* by RALPH D. MAWDSLEY, J.D., PH.D. AND JOHAN BECKMANN, PH.D.

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1 COMMENTARY RELIGION IN PUBLIC SCHOOLS: AN AMERICAN AND SOUTH AFRICAN PERSPECTIVE* by RALPH D. MAWDSLEY, J.D., PH.D. AND JOHAN BECKMANN, PH.D.** INTRODUCTION The Constitutions of both the United States and South Africa have provisions pertaining to religion. The United States Constitution is by far the briefer of the two, providing only that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof TTTT 1 The South African Constitution grants to everyone the right to freedom of conscience, religion, thought, belief and opinion 2 while also providing that religious observances may be conducted at state or stateaided institutions, as long as those observances follow rules made by the appropriate public authorities, they are conducted on an equitable basis, and attendance at them is free and voluntary. 3 Thus, while it is readily apparent under the U.S. Constitution that a conflict can arise as to whether government action constitutes an establishment of religion or whether government action prohibiting an establishment of religion has intruded upon a person s free exercise of religion, it is not clear the extent to which that conflict exists under South Africa s Constitution. What does appear to be facially clear from the Constitutions of the United States and South Africa is that both purport to protect individuals from government intrusion into a person s free exercise of religion. 4 * The views expressed are those of the authors and do not necessarily reflect the views of the publisher. Cite as 204 Ed.Law Rep. [445] (Feb. 9, 2006). ** Ralph D. Mawdsley is Professor of Educational Administration, Cleveland State University and Visiting Fulbright Professor of Law and Education, University of Pretoria, South Africa. Johan Beckmann is Head, Department of Education Management and Policy Studies, University of Pretoria, South Africa. 1. U.S.Const., Amend South Africa Const., 15 (1). 3. South Africa Const., 15 (2). 4. For U.S. cases, cf. Bowen v. Roy, 476 U.S. 693, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986) (rejecting free exercise claim of Native American opposing issuance of social security number in a child s name in order to be eligible for federal food stamp and AFDC programs because free exercise does not require government to conduct its internal affairs in ways that comport with the religious beliefs of particular citizens, even if a tenet of religion was that use of the number might harm the child s spirit and prevent her from attaining greater spiritual power) with Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (finding free exercise violation where state s effort to require Amish children to attend public schools would have led to children leaving the Amish religious community and the end of a three hundred year old religious tradition; in addition, the Court found that eight years of schooling in an Amish school achieved the state s interest in literacy and citizenship). [445]

2 EDUCATION LAW REPORTER The language in the First Amendment Religion Clauses is an express limitation on the federal government 5 and, through the Fourteenth Amendment, a limitation on state government as well. 6 However, determining the appropriate balance between the two separate religion clauses has presented for federal and state courts a difficult judicial puzzle. The agonizing and arduous judicial process of assessing the place of religion in American life over the past sixty years has required a consideration of the public policies to be served by prohibiting, permitting, or mandating religious activity in public schools. As will be evident in this article, American courts have developed multiple tests for assessing the appropriateness of government action regarding religion and for balancing competing claims between establishment and free exercise. Although conflicts involving the Religion Clauses have arisen in a variety of venues, 7 the cases involving education are by far the most numerous and the most controversial. Religion cases concerning education generally fit into one of two broad patterns, those where the issues between government and religion occur within public schools and those where the issues occur outside public schools. The cases involving religion within public schools have been the most contentious because they not only deal with minor students who are part of a captive audience under state compulsory attendance laws, but, more fundamentally, address important policy questions regarding the purpose and content of public education. The cases concerning religion issues outside public schools generally deal with government aid to religious schools and, although equally contentious, focus on quite a different policy question, namely the appropriate role of government in assisting the education of students in religious schools See Reynolds v. U.S., 98 U.S. 145, 166, 167, 25 L.Ed. 244 (1878) (recognizing that the free exercise clause was a restriction on Congress but upholding federal statute, and criminal conviction under it for bigamy, prohibiting polygamy in the territory of Utah because it is within the legitimate scope of the power of every civil government to determine whether polygamy of monogamy shall be the law of social life under its dominion... [and] [t]o permit [polygamy] would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. ) 6. See Cantwell v. Connecticut, 310 U.S. 296, 305, 60 S.Ct. 900, 84 L.Ed (1940) (first Supreme Court decision applying Religion Clauses through liberty clause of Fourteenth Amendment to states, in this case invalidating a state criminal statute p where denial of a permit to solicit was based on the secretary s determination of whether the cause was religious and where such denial was held to amount to censorship of religion ). 7. See e.g., McCreary County v. American Civil Liberties Union, 125 S.Ct (2005) (dis- [446] play of plaque with Ten Commandments in county courthouses violated Establishment Clause); Van Orden v. Perry, 125 S.Ct (2005) (upholding monument with Ten Commandments on state capitol grounds as not violating Establishment Clause); Lynch v. Donnelly, 465 U.S. 668, 675, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (holding display of crèche in city park along with other secular items not violation of the Establishment Clause) McDaniel v. Paty, 435 U.S. 618, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978) (Tennessee constitutional provision disqualifying ministers from serving in the state legislature violated the Free Exercise Clause). 8. The role of government has changed as the Supreme Court has altered the test used to determine a violation of the Establishment Clause. Cf. Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975) (finding an establishment clause violation under the second (effects) part of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 205, 29 L.Ed.2d 745 (1971) tripartite test where a state wanted to loan instructional materials and equipment to religious schools) with

3 RELIGION IN PUBLIC SCHOOLS Sixty years of Establishment Clause litigation in the United States has failed to create a bright-line test for determining acceptable government interaction with religion in the United States, in large part because of philosophical differences among members of the Supreme Court and because of the formation of multiple tests for assessing the meaning of the Establishment Clause. As a result, the definition of what is meant by establishing a religion has become remarkably fluid with some government action prohibited, some permitted although not required, and some required so as to prevent hostility toward religion. Without an establishment clause, the South African approach to religion and education has been quite different. Religion in public schools is treated not as a suspect element but rather a method to embrace and enhance nation building in a post-apartheid South Africa. The article will examine how South Africa has chosen to address religion and public education. The South Africa Constitution is barely ten years old and without an establishment clause in its constitution, South Africa has not developed the litigation history that has characterized the United States experience. Rather, South Africa has treated religion and public education as part of its process of democratization and, thus, while the basic outline of rights and responsibilities regarding religion are explicated in the constitution and the South African Schools Act of 1996 (Schools Act), the detailed directives for public schools are found in the Ministry of Education s National Policy on Religion and Education of 2003 (National Policy) (corresponding to regulations in the United States). The purpose of this article will be to examine the basic elements of his National Policy, their similarities and differences to the U.S. public school experience under the establishment clause, and problems created for South African public schools by implementation of the South Africa National Policy. For ease of consideration, the United States approach to religion and education will be examined first followed by South Africa s approach. At the end of the article, the authors will make some comparative comments regarding similarities and differences in the two approaches. Federalism and the Interaction of Government and Religion The federal system of government in the United States has created an interesting dynamic regarding the interaction of government and religion. The right to education, unlike South Africa, is a reserved power for the states and is not implied or expressly delegated in the U.S. Constitution to the federal government. However, the reserved power of states and local school boards to make decisions regarding religion and public schools does not immunize those actions from scrutiny under the establishment and free exercise clauses. 9 To further complicate the matter, even though Congress Mitchell v. Helms, 530 U.S. 793, 120 S.Ct. 2530, 147 L.Ed.2d 660 [145 Ed.Law Rep. [44]] (2000) (finding no violation of the loan of instructional materials and equipment to religious schools pursuant to federal law using neutrality and parent choice tests whereby the materials and equipment were provided to public schools as well and the presence of students in religious was a factor of parent, not government, choice; the Court in Mitchell overruled Meek). 9. See, e.g., Epperson v. State of Ark., 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968) (invalidating state statute prohibiting the teaching of theory of evolution in public schools or in higher educational institutions [447]

4 EDUCATION LAW REPORTER has no implied or express authority regarding education, it can choose to enact legislation affecting education under one or more of its delegated powers, the most important being the spending power. 10 When Congress chooses to enact such legislation, it, like the actions of states and local school districts, is subject to the establishment and free exercise clauses, but federal legislation has the added dimension of being included with the supremacy clause 11 and, thus, unless declared unconstitutional, federal laws take precedence over state constitutions, state legislation and school district rules. 12 In addition, when Congress enacts statutes pursuant to its spending power, states and school districts that accept funds made available under these statutes are subject to the conditions imposed. Thus, when Congress provides funds for education, these provisions come with conditions and when these conditions affect private (including religious) schools, states and local school districts upon acceptance of the funds are bound by those conditions. Unless the federal legislation is declared unconstitutional, the only way for states and school districts to avoid compliance with the statutory provisions is to refuse federal funding, which none have been willing to do. For example, under child find, 13 a process under the Individuals with Disabilities Education Act (IDEA) 14 and its most recent iteration, the Individuals with Disabilities Education Improvement Act (ID- EIA), 15 for identifying, locating and evaluating children with disabilities, 16 states and local school districts are required to identify, locate and evaluate children even if enrolled in a religious school. 17 Although the IDEA permits but does not require that states or school districts provide disability services on-site at religious schools, the Supreme Court has found that such provision supported by state funds as an attempt to advance the religious view of biblical creationism); Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 [75 Ed.Law Rep. [43]] (1992) (invalidating, under the Establishment Clause, school board use of prayer at graduation where the effect would be to coerce those opposed to religion to stand for the prayers and thus become a participant in that with which they disagree). 10. See U.S. Const., art. I, sec. 8 (Congress implied power to spend money is implied from the delegated power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States, ) 11. U.S. Const., art. VI ( This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land. ) 12. See, e.g., Gonzales v. Raich, 125 S.Ct (2005) (holding that the federal COntrolled Substances Act criminalizing [448] manufacture, distribution, or possession of marijuana took precedence under the Supremacy Clause over California s Compassionate Use Act permitting the growing and use of marijuana for intrastate medical use; the application of the federal criminal statute to growers and users in California did not violate Congress power to make laws pertaining to interstate commerce) U.S.C (a)(3), (10) (A)(II)(ii); 34 C.F.R U.S.C et seq. 15. See IDEIA, 20 U.S.C (a)(3) that extended the right of child find to children with disabilities who are homeless children or are wards of the State U.S.C (a)(3), (a)(10)(a)(ii); 34 C.F.R Id. State and public school districts within the state have the responsibility to identify, locate and evaluate children with disabilities applies with respect to children with disabilities in the State who are enrolled in private, including parochial, elementary and secondary schools.

5 RELIGION IN PUBLIC SCHOOLS would not violate the establishment clause. 18 In addition, the Supreme Court has upheld congressional mandates that federal funds involving the providing of remedial services at, and the purchase and loaning of instructional supplies and equipment to, religious schools be dispensed proportionately by states to students in public and private (including religious) schools. 19 In terms of religious activity within public schools, the Supreme Court upheld the Equal Access Act (EAA) 20 that prohibited public schools from preventing studentinitiated and student-led non-curriculum-related religious clubs from meeting on school premises where similar nonreligious clubs are permitted to meet. 21 The federal statutes discussed above are examples of permissive legislation under the establishment clause, namely laws that are not required by either the establishment or free exercise clauses, but which reflect a congressional purpose to assist children wherever they are educated. This article will explore the role of the American establishment clause in shaping the exercise of religion in both public and religious schools. Despite the somewhat dubious label, separation of church and state, that has been attached to the establishment clause, the purpose of this article will be to demonstrate how federal courts in the United States have distilled three functions from the establishment clause in fulfilling public policy regarding the appropriate interaction between government and religion in addressing matters of education: prohibiting government actions considered to be in support of religion; permitting but not requiring government actions that support religion; 18. Zobrest v. Catalina Foothills School District, 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d 1 [83 Ed.Law Rep. [930]] (1993) (holding that a public school district providing a sign language interpreter to a student in a religious was not a violation of the Establishment Clause). 19. For the IDEA see, 20 U.S.C. 1412(a)(10)(A)(i)(I); 34 C.F.R (Local education agencies [LEAs, i.e., public school districts] are required to expend funds for students with disabilities in private schools equal to a proportionate amount of Federal funds made available under [IDEA] ). See also, Mitchell v. Helms, 530 U.S. 793, 120 S.Ct. 2530, 147 L.Ed.2d 660 [145 Ed.Law Rep. [44]] (2000) where the Court upholding the congressional requirement that allocation of funds for school equipment and materials had to be provided on a proportionate basis. However, the reauthorization of the Elementary and Secondary Education Act, now Chapter 70 of No Child Left Behind (NCLB), 20 U.S.C. 7372, abolished the requirement in an earlier version of the Act, 20 U.S.C. 6321, that local public school districts provide on an equitable basis, special educational services or other benefits under this part (such as dual enrollment, educational radio and television, computer equipment and materials, other technology, and mobile educational services and equipment). The current language in NCLB, 20 U.S.C. 7372, is that [n]othing in this subchapter shall be construed to mandate equalized spending per pupil for a State, local educational agency, or school U.S.C (prohibiting public schools with a limited open forum from preventing students on the basis of the religious, political, philosophical, or other content of the speech from conducting meetings as long as the meetings are conducted during noninstructional time). Federal circuit courts have had an expansive interpretation as to what is noninstructional time. See Donovan v. Punxsutawney Area School Board, 336 F.3d 211 [179 Ed.Law Rep. [48]] (3d Cir. 2003) (half-hour activity period at the beginning of the school day) and Prince v. Jacoby, 303 F.3d 1074 [169 Ed.Law Rep. [85]] (9th Cir. 2002) (studentstaff time during the school day). 21. Westside Community School District v. Mergens, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 [60 Ed.Law Rep. [320]] (1990) (upholding constitutionality of the EAA against an Establishment Clause challenge). [449]

6 EDUCATION LAW REPORTER and mandating government actions that support religious activities in order to prohibit hostility toward religion. The Accommodationist/Separationist Controversy Expounding the meaning of the relationship between government and religion under a Constitution that is over two centuries old has not been an easy task and persistent divisions within the Supreme Court have contributed to the difficulty in determining the method of construction to use. On one side has been the accommodationists represented by Chief Justice Rehnquist 22 and Justices Scalia and Thomas reflected in the most recent and conflicting establishment clause cases regarding the display of the Ten Commandments on public property, McCreary County v. American Civil Liberties Union (McCreary) 23 (invalidating the display) and Van Orden v. Perry (Van Orden) 24 (upholding the display). The accommodationist justices in support of their position searched for the Constitution s meaning in the original intent of the authors of the Constitution. 25 In his scathing dissent in McCreary, Justice Scalia chronicled the references to God and support of religion by the first President (George Washington), 26 the first Congress, 27 and the Marshall Court, 28 views that not only reflected the beliefs of the period but also the belief that morality was essential to the well-being of society and that encouragement of religion was the best way to foster morality. 29 Similarly, Chief Rehnquist in his majority opinion in Van Orden referenced historical and judicial precedents chronicling the role of God in our Nation s heritage 30 and observed that [s]imply having religious content or promoting a message consistent with a religious doctrine does not run 22. With the death of Chief Justice Rehnquist and the appointment of the new Chief Justice Roberts, one cannot be certain how the balance between accommodationists and separationists will be affected S.Ct (2005) (invalidating in a 5 4 decision the posting of the Ten Commandments in two county courthouses, even though other historical documents were also included in the display) S.Ct (2005) (upholding in a 5 4 decision the Ten Commandments engraved on a monument located on the Texas state capitol grounds). 25. For a discussion of the accommodationist-separationist controversy, see Ralph Mawdsley Access by Religious Community Organizations to Public Schools: A Degrees of Separation Analysis, 193 Ed.Law Rep. [633] (2005). 26. See id. at 2748 (George Washington added to the form of Presidential oath prescribed by Art. II, 1, cl. 8, of the Constitution, the concluding words so help me God and offered the first Thanksgiving Proclamation...devoting November 26, 1789 on behalf of the American people to the [450] service of that great and glorious Being who is the beneficent author of all the good that is, that was, or that will be. ) 27. See id. (In addition to the first Congress instituting a practice of opening each session with prayer, the same week that Congress submitted the Establishment Clause as part of the Bill of Rights for ratification by the States, it enacted legislation providing for paid chaplains in the House and Senate and the day after the First Amendment was proposed, the same Congress that had proposed it requested the President to proclaim a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many and signal favours of Almighty God ). 28. See id. (The Supreme Court under John Marshall opened its sessions with the prayer, God save the United States and this Honorable Court ). 29. Id. at For other references by other early Presidents and Congresses to public expressions of belief in, and dependence upon, God, see id. 30. Id. at 2861.

7 RELIGION IN PUBLIC SCHOOLS afoul of the Establishment Clause. 31 Indeed, as Justice Scalia noted in his Van Orden concurring opinion, the Supreme Court over 50 years earlier, in Zorach v. Clauson, 32 had declared that We are a religious people whose institutions presuppose a Supreme Being, a view that was repeated with approval in three separate Supreme Court decisions over the next three decades. 33 On the other hand, the separationists represented by Justices Stevens, Souter and Ginsberg have expounded the meaning of constitutional provisions with one eye towards our Nation s history and the other fixed on its democratic aspirations, 34 otherwise known as the living Constitution perspective. 35 In his dissenting opinion in Van Orden, Justice Stevens observed that even if the majority opinion represented the views of the Founding Fathers, it is plainly not worthy of a society whose enviable hallmark over the course of two centuries has been the continuing expansion of religious pluralism and tolerance. 36 Justice Stevens asserted his reliance on the principle [of neutrality] firmly rooted in our Nation s history and our Constitution s text, a principle that government must remain neutral between valid systems of belief with the awareness that, [a]s religious pluralism has expanded, so has our acceptance of what constitutes valid belief systems. 37 Thus, according to the separationists, the establishment clause forbids the display of the Ten Commandments monument because it represents a direct descendent of the evil of discriminating among Christian sects. 38 The remaining three Justices, O Connor, 39 Kennedy, and Breyer have represented swing votes depending on the issue before the Court Id. at U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952) (upholding constitutionality of public school release time program that permitted students to leave the public school during the last hour of the school day one day per week and attend religious meetings at religious institutions of their choice while students not participating in the released time program stayed in the school until the end of the school day; in effect, the Court rejected the argument that the success of released time depended on state compulsory attendance requirements in that students had to either attend a religious institution or stay in the school, the Court relying instead on the support of parent choice). 33. See Lynch v. Donnelly, 465 U.S. 668, 675, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (holding display of crèche in city park along with other secular items); Marsh v. Chambers, 463 U.S. 783, 787, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) (upholding State of Nebraska s opening of each legislative session by chaplain paid with public funds, even though clergyman of only one denomination had been selected for 16 years and prayers were in the Judeo-Christian tradition); School Dist. Of Abington Township v. Schempp, 374 U.S. 203, 213, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (invalidating Pennsylvania statute requiring Bible reading at beginning of each school day in public schools). 34. Van Orden, 125 S.Ct. at 2889 (Stevens, J., dissenting). 35. See McCreary, 125 S.Ct. at 2756 (Scalia, J., dissenting). 36. Van Orden, 125 S.Ct. at 2887 (Stevens, J., dissenting). 37. Id. at Id. 39. Since the McCreary and Van Orden decisions, Justice O Connor has announced her retirement from the Supreme Court which will undoubtedly present during the approval process of appointment by the President with the advice and consent of the Senate the issue of what the nominee s views are regarding the role of government and religion. 40. In McCreary, Justices O Connor and Breyer joined with the majority invalidating the posting of the Ten Commandments while Justice Kennedy voted with the dissent. However, in Van Orden upholding a monument with the Ten Commandments, Justices Breyer and Kennedy both joined the majority and Justice O Connor voted [451]

8 EDUCATION LAW REPORTER The accommodationist view fits within what is sometimes referred to as strict construction which takes the position that the legislature [rather than the Supreme Court is] a much more appropriate expositor of social values 41 and, thus, the purpose of the Supreme Court is to interpret generously the Constitution because the powers conferred upon Congress under it had to be broad enough to serve not only the needs of the federal government originally discerned but also the needs that might arise in the future. 42 In large part, the strict constructionist view to judicial construction of the Constitution recognizes the limitation of judicial authority because the judicial power to review federal statutes, while reasonably implicit in the Constitution, is nonetheless not explicitly granted. 43 As a result, the Constitution should be viewed as an enactment that has a fixed meaning ascertainable through the usual devices familiar to those learned in the law as opposed to a novel invitation to apply current societal values. 44 On the other hand, the separationist view reflects what is referred to as a liberal (or, nonoriginalist) constructionist approach energizing the Supreme Court in particular, and all federal courts in general, to engage in a collaborative inquiry, involving both the Court and the country, into the contemporary content of freedom, fairness, and fraternity. 45 Relying on theories of public morality, 46 moral theory, 47 and relative equality, mobilization of citizenry, and civic virtue, 48 the liberal construction interpretation of the Constitution directs an adjustment to changing circumstances. Thus, Justice Stevens, dissenting in Van Orden, captured the essence of this approach when he remarked that [i]t is our duty, therefore, to interpret the First Amendment s command that Congress shall make no law respecting an establishment of religion not by merely asking what those words meant to observers at the time of the founding, but instead by deriving from the Clause s text and history the broad principles that remain valid today. 49 with the dissent. However, one needs to compare Justice O Connor s vote with the separationists in McCreary and Van Orden to her strict constructionist approach in Kelo: Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory...[t]he government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. Kelo, 125 S.Ct. at 2676, 2677 (O Connor, J., dissenting). 41. Antonin Scalia, Originalism: The Lesser Evil, 57 U.CIN.L.REV. 849, 854 (1989) 42. Id. at 853. The watchword is reflected by Justice Marshall, the second Chief Justice of the Supreme Court, in McCulloch v. Maryland where he declared that we must never forget it is a constitution we are expounding. 17 U.S. 316, 407, 4 L.Ed. 579 (1819). 43. See Marbury v. Madison, 5 U.S. 137, 177, 2 L.Ed. 60 (1803) (determining for the first time that the Supreme Court had the au- [452] thority to review laws of Congress, in this case finding that a statute ordering the Secretary of State to deliver judicial appointments signed by the President violated the Constitution s separation of powers with the observations that: (1) [i]t is emphatically the province and duty of the judicial department to say what the law is, (2) [i]f two law conflict with each other, the courts must decide on the operation of each, and (3) the constitution is to be considered, in court, as a paramount of law. ). 44. Scalia, 57 U.CIN.L.REV. at Lawrence Tribe, AMERICAN CONSTI- TUTIONAL LAW 771 (2d ed. 1988). 46. Owen Fiss, The Supreme Court 1978 Term-Forward: The Forms of Justice, 93 HARV.L.REV. 1, 9, 11 (1979). 47. Ronald Dworkin, TAKING RIGHTS SERIOUSLY 149 (1977). 48. Richard Parker, The Post Constitutional Theory And Its Future, 42 OHIO ST. L.J. 223, 258 n. 146 (1981).

9 RELIGION IN PUBLIC SCHOOLS The difficulty with the liberal constructionist approach is that while it invites judges to expand on fundamental values and freedoms that are uniquely our heritage, 50 it also leaves unanswered the question whether, once the original import of the Constitution is cast aside to be replaced by the fundamental values of the current society, to what extent must courts only expand on freedoms, and not contract them as well? 51 One can argue that the Supreme Court s 5-4 decision in Kelo v. City of New London 52 in its most recent term is just such an example of a restricted freedom, in this case private ownership of property. In this case, the majority (Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer) interpreted a public taking under the Fifth Amendment so that a city could condemn private property (wellmaintained homes in a poor urban area) and turn it over to another private entity (a manufacturer in this case who proposed building a new plant) so long as [the property] might be upgraded or as long as the condemnation might generate some secondary benefit for the public such as increased tax revenue, more jobs, maybe even aesthetic pleasure. 53 In this heavily contested, much publicized, and long awaited decision regarding the extension of the eminent domain power of government, Justice Stevens, writing for the majority, rationalized his diminution of private property ownership rights on the grounds that the needs of society have varied between different parts of the Nation, just as they have evolved over time in response to changed circumstances. 54 With this departure from the historical protection of private property against public taking and the invocation of a changed circumstances standard, Justice Stevens has, in effect, invited more litigation to determine whether future takings will satisfy this judicially-created guideline. 55 However, Justice Thomas, in his dissenting opinion in Kelo succinctly captured the concerns of the strict constructionist s concern about the erosion of constitutional rights, in this case the protection of private property ownership, when he pointedly observed, I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution. 56 Indeed, one can argue that departure by the Kelo majority from prior Supreme Court precedents that had restricted severely the taking of private property through eminent domain will result in future, protracted discussion as to how the 49. Van Orden, 125 S.Ct. at 2888 (Stevens, dissenting). 50. Lawrence Tribe, GOD SAVE THIS HONORABLE COURT 45 (1985). 51. See Scalia, U.CIN.L.REV. at S.Ct (2005). This case arose under the Fifth Amendment s provision that private property [shall not] be taken for public use, without just compensation. 53. Id. at 2675 (O Connor, J., dissenting). As Justice O Connor noted, Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory...[t]he government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. Id. at 2676, Id. at See id. at Id. at 2678 (Thomas, J., dissenting). See also, id. at where Justice Thomas injected another concern, Allowing the government to take property solely for public purpose is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. [453]

10 EDUCATION LAW REPORTER Constitution can further be used as an instrument of judicial social engineering. 57 Multiple Interpretive Tests for the Establishment Clause The conflict among factions of the Supreme Court in interpreting protection of private property rights in Kelo mirrors the interpretive dilemma regarding the establishment clause and education. The disagreement among members of the Court in religion cases, as in McCreary and Van Orden, demonstrates differences in opinion regarding the appropriate test to be used in assessing whether a violation of the Establishment Clause has occurred. Over the years, members of the Court in addressing Establishment Clause issues have invoked at least five different tests in assessing whether government involvement in religion violates the Establishment Clause: Lemon v. Kurtzman (Lemon) 58 tripartite test, endorsement, 59 divisiveness, 60 coercion, The two leading Supreme Court cases upholding public taking of private property are Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984) and Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954). In Berman, the Court upheld condemnation of a blighted neighborhood of Washington D.C. where 64.3% of the buildings were beyond repair and the Court deferred to Congress judgment to treat the entire neighborhood as a unit, even though Berman s store was not in need of repair. Midkiff involved a Hawaii statutory condemnation scheme to condemn and resell property where only 22 landowners owned fee simple title to 72.5% of 47% of land in the state resulting in inflated real estate markets. However, the cases hewed to a bedrock principle that formed, up to Kelo, the basis for jurisprudence: A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void. Midkiff, 467 U.S. at 245, 104 S.Ct U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (invalidating a state statute providing reimbursement for teacher salaries, textbooks, and instructional materials used in nonpublic, including religious, schools under a newly crafted tripartite test: state action involving religion must have a secular purpose, must neither advance nor inhibit religion, and not involve the state in excessive entanglement). Id. at 613, 91 S.Ct The two-part endorsement test, first articulated by Justice O Connor in Lynch v. Donnelly, 465 U.S. 668, 690, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O Connor, J., concurring) requires that courts determine whether government action has a secular [454] purpose and whether, using an objectiveobserver test comparable to the reasonable person standard in tort law, a reasonably knowledgeable person would objectively perceive the government action as an endorsement of religion. The district court judge in McCreary, although relying on the Lemon test to analyze the Ten Commandment displays, used the endorsement test to determine whether the postings constituted an advancement of religion under the second of the Lemon tests, much as Justice O Connor had developed the endorsement test. See Lynch v. Donnelly, 465 U.S. at 690, 104 S.Ct ( The purpose prong of the Lemon test asks whether government s actual purpose is to endorse or disapprove of religion. The effect prong asks whether, irrespective of government s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval ). See American Civil Liberties Union v. McCreary County, 96 F.Supp.2d 679, 687 (E.D. Ky 2000). 60. Divisiveness has been used to refer both to divisions among religious adherents and to competition in the political process for resources. See Justice Souter s majority opinion in McCreary, We are centuries away from the St. Bartholomew s Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable. McCreary, 125 S.Ct. at See also, Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975). Justice Brennan s decision concurring with the majority s declaring unconstitutional the loaning of instructional materials and auxiliary programs but dissenting from the decision to find constitu-

11 RELIGION IN PUBLIC SCHOOLS neutrality, 62 and the historical intent 63 tests. Indeed, one can argue that the interpretive lens through which a member of the Court chooses to view the establishment clause will influence that member s decision. Clearly, the oldest, most frequently used and most contentious of the religion tests is the Lemon test. Despite efforts by accommodationists on the Supreme Court to eliminate the Lemon test, 64 it has demonstrated remarkable resilience. The three parts of the test that government action must have a secular purpose, must not have the effect of either advancing or inhibiting religion, and must not result in government entanglement with religion have been particularly daunting for accommodationists seeking to allow for greater government-religion interaction between government and religion in education because failure of any one of the three tests constitutes a violation of the Establishment Clause. While framed in the context of government financial support for religious schools, the Lemon test has been invoked in a wide range of religion cases to both prohibit and permit efforts to accommodate religious beliefs in public schools and permit government support for religious schools. However, the line between prohibited and permitted government conduct quickly became blurred and, thus, while state legislatures could not supplement the salaries of religious school teachers who taught secular subjects 65 or pay for maintenance repairs at religious schools, 66 states were tional the loaning of textbooks noted that, The potential for political divisiveness related to religious belief and practice is aggravated...by the need for continuing annual appropriations and the likelihood of larger and larger demands as costs and populations grow. Id. at 375, 95 S.Ct. 1753, quoting from Lemon, 403 U.S. at , 91 S.Ct (Brennan, J., concurring in part and dissenting in part). 61. In Lee v. Weisman, 505 U.S. 577, 588, 112 S.Ct. 2649, 120 L.Ed.2d 467 [75 Ed.Law Rep. [43]] (1992), (the majority of the Court in striking down graduation prayer on behalf of participants who felt pressured to stand for an invocation and benediction delivered by a rabbi created a psychological coercion test, observing that subtle coercive pressures exist...where the student had no real alternative which would have allowed her to avoid the fact or appearance of participation ). 62. See Mueller v. Allen, 463 U.S. 388, 103 S.Ct. 3062, 77 L.Ed.2d 721 [11 Ed.Law Rep. [763]] (1983) (upholding Minnesota state tax deduction for tuition, books, and transportation expenses at both public and nonpublic, including religious, schools, and finding no Establishment Clause violation because statute was neutral in terms of those benefiting, even though only those in nonpublic schools were likely to be eligible for the deductions). 63. See McCreary, 125 S.Ct. at (Scalia, J., dissenting). See also, Van Orden, 124 S.Ct. at See Lamb s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 [83 Ed.Law Rep. [30]] (1993) where Justice Scalia, while concurring in Justice White s majority opinion, takes issue with his reference to Lemon v. Kurtzman: Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under. Our decision in Lee v. Weisman, 505 U.S. 577, , 112 S.Ct. 2649, 120 L.Ed.2d 467 [75 Ed.Law Rep. [43]] (1992), conspicuously avoided using the supposed test but also declined the invitation to repudiate it. Id. at 398, 113 S.Ct (Scalia, J., concurring in the judgment). 65. Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). [455]

12 EDUCATION LAW REPORTER permitted to transport children to religious schools on publicly owned buses, 67 to loan textbooks to religious schools, 68 to reimburse religious schools for performing various testing and reporting services mandated by state law, 69 and to furnish standardized tests identical to those used in the public schools. 70 To add to the confusion, while states could loan textbooks they could not loan other kinds of supplementary materials or teaching aids 71 and, while states could provide public funds for diagnostic testing on-site in religious schools, those funds could be used to provide therapeutic services only if offered at a public site. 72 In these early cases, the Court agonized and disputed at length regarding the meaning of original intent. Discerning a bright line as to what government activities should be prohibited and which should be permitted under the establishment clause became extremely difficult. For those Justices arguing for a strict line of separation between government and religion, a backward look to the religious persecutions in Fifteenth Century and Sixteenth Century England became their reference point, while those Justices arguing for a less rigid separation between government and religion argued that the colonial experience augured for government prohibition of religious contact only where government chose to support a specific religion (a preferential as opposed to a nonpreferential view), 73 a dispute that has never been resolved and was revisited in McCreary and Van Orden Committee for Pub. Educ. and Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973). 67. Everson v. Bd. of Educ., 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947). 68. Bd. of Cent. Sch. Dist. v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968); Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975); Wolman v. Walter, 433 U.S. 229, , 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977). 69. Committee for Pub. Educ. v. Regan, 444 U.S. 646, 100 S.Ct. 840, 63 L.Ed.2d 94 (1980). But see, Levitt v. Comm. For Pub. Educ., 413 U.S. 472, 93 S.Ct. 2814, 37 L.Ed.2d 736 (1973) (invalidating New York statute authorizing state to reimburse nonpublic schools for expenses of services for examination and inspection in connection with administration, grading and compiling and reporting the results of tests and examinations and the maintenance of certain records where they were prepared by religious schools and were an integral part of the teaching process.) 70. Wolman v. Walter, 433 U.S. 229, , 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977). 71. Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975) (invalidating Pennsylvania statute as to loan of instructional materials that could be diverted to religious uses but upholding loan of text- [456] books); Wolman v. Walter, 433 U.S , 97 S.Ct (1977) (upholding Ohio statute loaning textbooks to religious schools but invalidating portion of statute loaning instructional materials). 72. Wolman v. Walter, 433 U.S. 229, , 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977). 73. Cf. Wallace v. Jaffree, 472 U.S. 38, 106, 105 S.Ct. 2479, 86 L.Ed.2d 29 [25 Ed.Law Rep. [39]] (1985) (Rehnquist, J., dissenting) (supporting nonpreferential view, [t]he Establishment Clause did not require government neutrality between religion and irreligion nor did it prohibit the Federal Government from providing nondiscriminatory aid to religion ) with Lee v. Weisman, 505 U.S. 577, 612, 615, 112 S.Ct. 2649, 120 L.Ed.2d 467 [75 Ed.Law Rep. [43]] (1992) (Souter, J., concurring) (rejecting nonpreferential approach, The Framers repeatedly considered and deliberately rejected such narrow language and instead extended their prohibition to state support for religion in general. ) 74. For examples of judicial interpretations of the views of the Founding Fathers, see Engel v. Vitale, 370 U.S. 421, , 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962) (striking down school board rule requiring recitation of the following prayer, Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our

13 RELIGION IN PUBLIC SCHOOLS Establishment Clause Litigation and Values The early government aid to religious school cases, while demonstrating conflict regarding the meaning of establishing a religion, did not really strike at the core of the issue, namely the place of religious values in American culture. After all, the aid cases had only concerned what government could do with relationship to religious activities outside government venues, not what government could do in its own venues. 75 The prayer and Bible reading cases, Engel v. Vitale (Engel) and Abingdon School District v. Schempp (Schempp), 76 were the first school cases to address the role of religion in public schools. Ten years prior to Engel, in 1952, the Supreme Court in upholding early dismissal of students from public schools to attend offcampus religious classes, had observed, We are a religious people whose institutions presuppose a Supreme Being, 77 but the Supreme Court, in striking down prayer and Bible reading as part of public school daily homeroom opening activities in Engel and Schempp, found religious tradition to be largely irrelevant. 78 Justice Black writing for the Court in Engel observed that the first and most immediate purpose [of the establishment clause] rested on the belief that a union of government and religion tends to destroy government and to degrade religion. 79 Invoking a wholesome neutrality, Justice Clark, writing for the majority in Schempp, referenced the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies. 80 In the only dissent in both Engel and Schempp, Justice Stewart, similar to Justice Thomas in McCreary, opined that [i]n the absence of coercion... parents, our teachers and our Country. ); Abington Sch. Dist. v. Schempp, 374 U.S. 203, , 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (finding that the purpose of the Establishment Clause was designed comprehensively to prevent those official involvements of religion which would tend to foster or discourage religious worship or belief. ) Id. at 234, 83 S.Ct (Douglas, J., concurring). 75. See generally, Ralph Mawdsley and Charles Russo, Religious Schools and Government Assistance: What is Acceptable after Helms? 151 Ed.Law Rep. [373] (2001) U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (state statute required the reading of ten verses from the Bible over the school public address system and the recitation of the Lord s Prayer by students in their home rooms. Students who objected could absent themselves from the home room or simply not participate in the exercises. The parents challenging the statute in this case chose not to absent their children because they did not want them considered to be odd balls ). Id. at 207, 83 S.Ct. 1560, note Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 96 L.Ed. 954 (1952). 78. See Schempp, 374 U.S. at 213, 83 S.Ct. 1560, where the Court, although striking down the school practice of Bible reading and recitation of the Lord s Prayer over the school address system, nonetheless observed that the fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings. In addition, the Court cited to Bureau of Census figures that only 3% of Americans in 1962 professed no religion whatsoever. In effect, these observations made no difference because the majority was persuaded that recitation of words with religious meanings participated in by a captive audience amounted to government indoctrination. 79. Engel, 370 U.S. at 431, 82 S.Ct Id. at 221, 83 S.Ct [457]